Michigan Supreme Court to consider survivor benefits for twins conceived after father's death

November 13, 2012

Detroit Free Press Lansing Bureau

LANSING -- When Jeffrey Mattison of Portage got sick, he froze some of his sperm so the chemotherapy he was about to undergo wouldn't prevent him and his wife, Pamela, from having children.

When Mattison died in 2001, his wife used the banked sperm and conceived twins -- Mallory and Michael -- who were born about 10 months after their father's death.

But now, the Social Security Administration is refusing to treat the twins as Jeffrey Mattison's heirs and grant them survivor benefits of a few hundred dollars a month, based on Mattison's earnings, saying the children didn't "survive" their dad because they were conceived after his death.

The Michigan Supreme Court is to decide the issue in a case set for arguments on Thursday. It is the first of its kind in Michigan, and one of only a handful of similar cases across the country.

It's one example of a raft of new legal issues that have emerged surrounding in vitro fertilization. For example, if a couple with frozen embryos is divorced, who gets them?

"A lot of these situations are so new that the law has not caught up with the science," said Joan Coulter, a family law attorney in St. Louis, Mo., who has handled similar cases.

"We're making new law here, and it's a pretty exciting time, if you're a lawyer."

In the Michigan case, Kalamazoo attorney Victor Bland noted Social Security is paying survivor benefits to the twins' 14-year-old sister Jenna, who also was conceived through in vitro fertilization, but before her father's death.

As a matter of fairness, "why shouldn't these kids get money?" he asked of the 11-year-old twins.

Bland represents Pamela Mattison -- whose husband was sick with lupus and other ailments -- in what began in 2005 as a federal lawsuit. The case was transferred to the Michigan Supreme Court because inheritance issues are typically decided based on state law, rather than federal law.

A few states, Massachusetts, New Jersey, Delaware and Iowa among them, explicitly allow for inheritance by children posthumously conceived.

But Michigan doesn't. So if the principle of fairness is on the family's side, the letter of Michigan law is much less so.

State law says that for children to inherit they must "survive the decedent."

"Thus, the individual is required to be alive at the time of the decedent's death," attorneys for the Social Security Administration argue in court filings.

"Posthumously conceived children do not meet this requirement, and thus cannot inherit."

Though the Mattison twins were conceived soon after their father's death, in vitro technology allows similar situations to arise much later, creating potential problems, legal expert say.

"Children may be conceived posthumously several years after an individual's death, and waiting for the potential birth of a posthumously conceived child could tie up estate distributions indefinitely," the New Hampshire Supreme Court said in a 2007 case.

Most states that allow inheritance for children conceived posthumously allow it only under certain conditions, such as when the deceased parent consents in writing, prior to death, to conceiving a child after death.

Bland has that written consent. Jeffrey Mattison left a power of attorney authorizing his wife to take "any and all action necessary pertaining to any sperm or embryos I may have stored, including their implantation or termination."

What Bland doesn't have is the explicit provision in Michigan law: In 1998, lawmakers amended state law to allow for inheritance by children the mother was pregnant with at the time of the father's death.

That provision doesn't help Bland, and the Social Security Administration argues it actually hurts him, since it shows the Legislature considered and amended state law after the development of in vitro fertilization and opted not to make a special allowance for children conceived posthumously.

Bland argues conception shouldn't be defined solely by the moment when sperm meets egg, but is instead "a process."

In the case of the Mattisons, that process spanned many months and Jeffrey Mattison was alive for much of it, even injecting his wife with hormones to assist the process the night before he died, Bland said.

"There is no basis for this interpretation of 'conception' in the state ... statutes," the Social Security Administration replies.

More Details: What the law says

On Thursday, the Michigan Supreme Court is to hear arguments on whether Portage twins conceived through in vitro fertilization after their father’s death are eligible for Social Security survivor benefits.

Michigan inheritance law makes no specific reference to children conceived posthumously, and attorneys for the Social Security Administration argue what the law does say is not helpful to the Portage twins.

Here’s what Michigan law says about inheritance outside of a will:

• A “surviving descendant” is defined as someone who didn’t predecease the person who died (decedent), and “an individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent …”

• The law provides an exception for children in the womb at the time of the death. “(A)n individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth.”